Terms and conditions

a. “Business Day” means a day, other than Saturday and Sunday, when banks are open for business in Panama.

b. “Contract Address” means the smart contract address for minting the Tokens on the Ethereum network

KAU ERC20: https://etherscan.io/token/0x14DAB79fD7B7B3f748d434812Fd6a9Aac460EA52

KAG ERC20: https://etherscan.io/token/0x56Ba8B58B7d1f6d384A1C4dD553F39ebc8741B8e

c. “Digital Tokens Address” means a unique cryptographic address associated with a specific blockchain network for holding or transacting digital tokens;

d. “Eligible User” means a Person who is not resident in one or more of the Restricted Jurisdictions and is not a Restricted Person or a Sanctioned Person;

e. “Fork” has the meaning set out in section 6;

f. “Governing Law” means the laws of the Republic of Panama;

g. “Indemnified Parties” has the meaning set out in section 17;

h. “Kinesis Tokens” means the KAU token issued at contract address https://stellar.expert/explorer/public/asset/KAUGA3X4QDHYQSJI7NPCNNCWB7LLDYOKNXHU4JH7AH6E6Y5K7BIY7R44HXE and KAG token issued at contract address https://stellar.expert/explorer/public/asset/KAGGDN6ASJNUX5IHSXQYBTRAKJLZJM54EOUBYCX7YVWWMXKJGH7UOH3HXH5 on the Kinesis Blockchain (a hard fork of Stellar) by Kinesis Cayman

i. “KMS Labs” means KMS Labs, S.A. a company incorporated under the laws of the Republic of Panama;

j. “KMS Labs IP” has the meaning set out in section 18;

k. “KMS Labs Parties” has the meaning set out in section 16;

l. “Restricted Jurisdictions” includes the Republic of Panama, Cuba, Iran, Syria, North Korea (Democratic People’s Republic of Korea), the Ukraine regions of Crimea, Donetsk, Luhansk, Kherson, and Zaporizhzhia, and Venezuela (with respect to the Government of Venezuela);

m. “Reserve” means the assets which provide the backing to the Tokens as described in section 8;

n. “Restricted Persons” means a person who is in material breach of these Terms as well as a Sanctioned Person;

o. “Sanctioned Person” means any person, entity, or Digital Tokens Address that is: (i) specifically listed in any Sanctions List; (ii) directly or indirectly owned 50 percent or more by any person or group of persons in the aggregate, or a Digital Tokens Address associated with such person or persons, referred to in any Sanctions List; (iii) located, organized, or resident in a Restricted Jurisdiction; or (iv) subject to any government approval or otherwise sanctioned, restricted, or penalized under applicable Sanctions Laws, anti-money laundering, or counter-terrorist financing laws.

p. “Sanctions Laws” means such laws in force from time to time which contain restrictions in respect of dealings between persons located in named jurisdictions;

q. “Sanctions List” means any list of sanctioned, restricted, denied, or blocked persons, entities, or addresses maintained by any governmental authority, including but not limited to: (i) the “Specially Designated Nationals and Blocked Persons” (“SDN“) List and the Non-SDN List, including the “Sectoral Sanctions Identifications List”, published by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC“); (ii) the Section 311 Special Measures for Jurisdictions, Financial Institutions, or International Transactions of Primary Money Laundering Concern published by FinCEN; (iii) any sanctions-related list maintained by the U.S. Department of State, the U.S. Department of Commerce
(including the Bureau of Industry and Security’s Entity List and Denied Persons List), or the U.S. Department of the Treasury; (iv) any similar list maintained by the United Nations, the European Union, the United Kingdom, or any other relevant governmental authority; and (v) any other sanctions, export control, or similar restricted party list under applicable Sanctions Laws, as each such list may be amended, supplemented, or substituted from time to time.

r. “Services” means such services which KMS Labs may offer from time to time in connection with the Tokens;

s. “Terms” means these terms and conditions as amended from time to time in accordance with section 21.h).

t. “the Tokens” includes all of the following cryptographic token issued at the respective Contract Addresses on the Ethereum Network: KAU and KAG;

u. “Website” means the official website of KMS Labs where these Terms are hosted, currently located at www.kmslabs.money.

In interpreting these Terms, the following words have the following meanings unless otherwise indicated:

a. words importing the singular include the plural and vice versa;

b. words importing gender include all genders;

c. the word “include,” “includes,” or “including” will be interpreted on an inclusive basis and be deemed to be followed by the words “without limitation”;

d. references to “persons” include individuals, corporations, partnerships, trusts, unincorporated associations, and any other legal entities;

e. references to any statute, regulation, or legal requirement include any amendment, modification, or re-enactment thereof;

f. headings and sub-headings are for ease of reference only and are not to be considered in the construction or interpretation of any provision;

h. Currency References. Unless otherwise specified, all monetary amounts referenced in these Terms are denominated in United States dollars;

i. Time References. References to time are to Panama time unless otherwise specified; and

j. Order of Precedence. In the event of any conflict or inconsistency between these Terms and any other documentation, these Terms shall prevail unless expressly stated otherwise.

Each of the tokens forming part of the Tokens is a fully programmable and freely transferable cryptographic token meeting the ERC-20 standard backed by a Reserve to preserve a 1:1 peg to the Kinesis Tokens issued on the Kinesis Blockchain (a hard fork of Stellar) and available only for holding by Eligible Users. The Tokens are only available on the Ethereum network and will not be minted on any other blockchain without prior notice by KMS Labs. The Tokens are issued solely by KMS Labs. The issuer of the Kinesis Tokens that make up the Reserve is not the issuer of the Tokens and has no obligations to holders of the Tokens.

KMS Labs issues the Tokens only when fully backed by the Reserve (see Section 8) and also distributes the Tokens to authorized crypto exchanges. No issuance of any kind, or acquisition of any of the Tokens by an Eligible User (or any other user) creates any kind of trust or fiduciary relationship between KMS Labs and that user.

KMS Labs may offer direct redemption for the Tokens under such terms and conditions or policy that it, in its sole discretion, determines, which may include fees, charges and AML/CFT checks as well as minimum transaction sizes. Redemption will only be 1:1 for each of the Tokens to the respective Kinesis Tokens. KMS Labs makes no representation or warranty that there will be direct redemption mechanisms available at all times or that any redemption will be processed within any particular timeframe.

a. Fork Management. In the event of a hard or soft fork of any blockchain (“Fork”) on which the Tokens are issued, resulting in multiple versions of the blockchain or the Tokens, KMS Labs shall, in its sole discretion, determine which Fork, if any, will be supported for the Tokens operations.

b. Notice of Fork Support. KMS Labs will publish a notice on its website and through other appropriate channels within a commercially reasonable time after becoming aware of a Fork event, specifying:

i. the occurrence of the Fork;

ii. which Fork, if any, will be supported by KMS Labs; and

iii. any actions required by Token holders.

c. Exclusive Recognition. Only the Tokens on the Fork designated by KMS Labs in its published notice shall be recognized as backed by the Reserve. Tokens on any other Fork or blockchain version shall not be backed by the Reserve.

d. Service Suspension. KMS Labs may temporarily suspend all Token-related services, including minting, redemption, and transfers, during a Fork event until the supported Fork is determined and operations can be safely resumed.

e. No Liability. KMS Labs assumes no responsibility or liability for any losses arising from Fork events, including but not limited to losses from the Tokens on unsupported Forks or service interruptions during Fork resolution. KMS Labs shall have no liability for any losses, damages, costs, or expenses arising directly or indirectly from: Fork events affecting the Tokens including:

i. the Tokens appearing to be available on unsupported Forks; or

ii. Service interruptions during Fork resolution.

The Tokens may only be held by Eligible Users who are in compliance with these Terms and Conditions at all times. KMS Labs reserves the right to impose restrictions as may be required by applicable law, to the Tokens, from time to time and without notice, if circumstances require.

a. Reserve Composition. KMS Labs maintains a reserve of Kinesis Tokens equal to the number of Tokens minted (the “Reserve”).

b. Segregation and Custody. The Reserve is held in segregated wallets that are separate from KMS Labs’s wallets and assets. Such segregated wallets are maintained by KMS Labs for the exclusive purpose of providing backing and a redemption source for the Token holders who redeem their Tokens.

c. Reserve Audit. KMS Labs relies upon independent audits conducted by a third party auditor in respect of the backing of the Kinesis Tokens with vaulted gold and silver and makes no representations or warranties as to those audits or attestations of Kinesis Cayman, issuer of the Kinesis Tokens, as to the accuracy of the audits or backing of the Reserve with physical gold. Any purchase of the Tokens carries a counterparty risk with Kinesis Cayman as issuer of the Kinesis Tokens.

d. Net Returns. KMS Labs is entitled to and may retain all net returns, interest, and other income earned on Reserve assets to the extent not required to maintain the minimum Reserve value required hereunder.

e. Holders’ acknowledgement. Holders of the Tokens acknowledge and agree that they have no legal, equitable or beneficial right, title or interest in or to the Reserves, nor any right to direct or influence how the Reserves are constituted, managed or reported and no fiduciary or trust relationship arises as between any holder and KMS Labs by virtue of that holder holding any of the Tokens.

f. Transparency. KMS Labs will provide periodic reporting on holdings in accordance with applicable regulatory requirements and industry best practices.

a. Initial Compliance. Each Eligible User represents and warrants that they are in full compliance with all applicable laws, rules, regulations, guidance, orders, and directions from regulatory authorities in all relevant jurisdictions that are applicable to their use of the Tokens and the Services, including but not limited to all applicable AML, CTF, sanctions laws, anti-corruption laws, and export control regulations.

b. Ongoing Compliance Obligation. Each Eligible User shall at all times maintain compliance with all applicable laws and regulations during their use of the Tokens and the Services. This obligation includes promptly implementing any changes required by new or amended laws, regulations, or regulatory guidance.

c. Consequences of Non-Compliance. Any violation of applicable laws or failure to maintain compliance shall constitute a material breach of these Terms and may result in immediate suspension or termination of access to the Tokens and the Services, freezing of the Tokens pursuant to section 11, and reporting to relevant authorities as required by law.

a. General Prohibition. Eligible Users are strictly prohibited from using the Tokens, directly or indirectly, for any illegal activities under the laws, statutes, ordinances, or regulations of any jurisdiction in which the Eligible User is located, organized, resident, or conducting business.

b. Specific Prohibited Uses. Without limiting the generality of the foregoing, Eligible Users shall not use the Tokens for:

i. any activity that violates or assists in the violation of any applicable law, including but not limited to AML/CTF, Sanctions Laws, anticorruption laws, or export control regulations;

ii. money laundering, terrorist financing, fraud, blackmail, extortion, ransoming data, or other violent activities;

iii. purchasing goods or services from “Darknet” markets or any marketplace for illegal goods;

iv. gambling activities unless licensed and authorized by both the jurisdiction in which the Eligible User is based and the jurisdiction in which the transaction takes place;

v. transactions involving controlled substances, weapons, or other contraband unless properly licensed;

vi. any Ponzi scheme, pyramid scheme, or multi-level marketing program;

vii. market manipulation, wash trading, front-running, insider trading, or other forms of market-based fraud or deceit; or

viii. any other activity that would expose KMS Labs to legal liability or regulatory action.

c. Compliance Obligation. Each Eligible User represents and warrants that their use of the Tokens complies with all applicable laws in their jurisdiction and shall immediately cease any use that becomes illegal or prohibited.

d. Consequences of Violation. Any violation of this Section shall constitute a material breach of these Terms and may result in immediate suspension or termination of access to the Tokens, freezing of the Tokens under section 11, and reporting to relevant authorities as required by law.

a. Discretionary Freezing Rights. KMS Labs may, but shall not be obligated to, freeze, blacklist, or otherwise restrict access to any the Tokens or Digital Tokens Address at its sole discretion, including but not limited to circumstances where: (i) required or requested by any governmental, regulatory, judicial, or law enforcement authority; (ii) KMS Labs reasonably believes such action is necessary to comply with applicable laws, regulations, or legal process; (iii) KMS Labs suspects fraudulent, illegal, or sanctioned activity involving the Tokens; (iv) KMS Labs determines that continued access may expose KMS Labs to legal liability or regulatory action; (v) there has been a security breach, hack, or other compromise affecting the Tokens or related systems; (vi) the Tokens are held by or associated with a Sanctioned Person or Restricted Person; (vii) the Tokens are being used in violation of these Terms or applicable law; or (viii) KMS Labs deems such action necessary or appropriate for any other reason in its sole discretion.

b. No Advance Notice Required. KMS Labs may implement any freezing or restriction without prior notice to the affected Eligible User or any other party.

c. No Liability. KMS Labs has no liability for any losses, damages, or consequences arising from the exercise or non-exercise of its freezing rights under this Section, including but not limited to any decision to freeze or not freeze the Tokens.

d. Cooperation with Authorities. KMS Labs may cooperate with law enforcement, regulatory authorities, and judicial bodies in connection with any freezing action, including providing information and assistance as requested or required by law.

e. Recovery and Disposal. KMS Labs may recover, seize, or dispose of frozen the Tokens as required by law or legal process, and may transfer such tokens to appropriate authorities or segregated addresses as necessary.

KMS Labs may charge fees for the issuance, transfer, redemption, and other services related to the Tokens. KMS Labs reserves the right to modify fees at any time. Users acknowledge that third-party financial institutions, exchanges, or wallet providers may impose additional fees for transactions involving the Tokens, which are outside of KMS Labs’s control. Holders acknowledge that any redemption of the Tokens for physical gold cannot occur directly, but a holder must first redeem the Tokens to Kinesis Tokens (accepting any Terms and Conditions then applying to those tokens) and then follow Kinesis Cayman’s redemption process then in force relating to the Kinesis Tokens.

a. Reserve Backing. KMS Labs represents and warrants that each of the Tokens token in circulation is backed by a respective Kinesis Tokens held in the Reserve matching the relevant metal applicable to each of the Tokens, maintained in accordance with Section 8 of these Terms. 

b. Regulatory Compliance. KMS Labs represents and warrants that it maintains all necessary licenses, registrations, and authorizations required under applicable law for the issuance and operation of the Tokens and the provision of the Services.

c. Authority. KMS Labs represents and warrants that it has full corporate power and authority to enter into these Terms and perform its obligations hereunder.

d. LIMITED NATURE OF WARRANTIES. THE WARRANTIES SET FORTH IN THIS SECTION 13 ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY KMS LABS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, KMS LABS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR SATISFACTORY QUALITY.

e. No Performance Warranties. KMS Labs does not warrant that the Tokens or the Services will be uninterrupted, timely, secure, or error-free, or that any defects will be corrected.

You represent, warrant, and covenant to KMS Labs that:

a. Proper Usage. You will use the Tokens solely for its intended purpose as a digital payment mechanism and store of value, and not for any speculative, investment, or profit-generating purposes. You acknowledge that the Tokens are not designed to increase in value, generate returns, or create profit or gain for holders.

b. Legal Compliance. You will use the Tokens only in compliance with all applicable laws, regulations, and legal requirements in all relevant jurisdictions, including but not limited to anti-money laundering, counterterrorist financing, sanctions laws, anti-corruption laws, and export control regulations.

c. No Illegal Activities. You will not use the Tokens, directly or indirectly, for any illegal, illicit, fraudulent, or unlawful activities, including but not limited to money laundering, terrorist financing, fraud, blackmail, extortion, ransoming data, drug trafficking, weapons trafficking, or any other criminal activities.

d. No Securities or Financial Product Use. You will not use, offer, market, or structure the Tokens as part of any security, investment contract, collective investment scheme, financial product, derivative instrument, or any other regulated financial instrument. You will not represent the Tokens as an investment opportunity or promote it for investment purposes.

e. No Unauthorized Distribution. You will not act as a broker, dealer, investment advisor, or financial intermediary with respect to the Tokens without proper licensing and authorization from applicable regulatory authorities.

f. Accurate Information. All information provided by you to KMS Labs is true, accurate, complete, and not misleading, and you will promptly update such information if it becomes inaccurate or incomplete.

g. Capacity and Authority. You have the legal capacity and authority to enter into these Terms and perform your obligations hereunder, and these Terms constitute valid and binding obligations enforceable against you.

h. Continuing Warranties. These representations and warranties are made as of the date you first access or use the Tokens and are deemed to be repeated each time you use the Tokens or the Services.

i. Breach of Warranty. If any of the foregoing representations or warranties become untrue you warrant that you will immediately cease to use the Tokens and any Services.

a. Private Keys

You acknowledge and agree that you are solely and exclusively responsible for maintaining the security, confidentiality, and backup of your private keys and any other credentials necessary to access your Tokens in any digital wallet. This responsibility includes: (i) generating and storing private keys using secure methods and reputable wallet software; (ii) maintaining secure backups of private keys in multiple secure locations; (iii) implementing appropriate cybersecurity measures including strong passwords, two-factor authentication where available, and secure storage methods; (iv) protecting private keys from unauthorized access, theft, loss, or compromise; (v) never sharing private keys with any third party or storing them in unsecured locations.

Any transaction executed using your private keys will be deemed to have been authorized by you, regardless of whether you authorized such a transaction. You bear complete responsibility for all transactions occurring with your private keys, including transactions resulting from: (i) compromise or theft of your private keys; (ii) unauthorized access to your wallet or devices; (iii) phishing attacks, malware, or other security breaches; (iv) your failure to maintain adequate security measures. e. No Recovery Obligation. If your private keys are lost, stolen, compromised, or destroyed, KMS Labs has no obligation and no ability to recover, replace, or restore access to your Tokens. Any Tokens associated with lost or compromised private keys may become permanently inaccessible and irrecoverable.

b. Immutable and Irreversible Transactions. You understand and acknowledge that blockchain transactions are immutable and irreversible by design. Once a transaction involving the Tokens has been broadcast to the blockchain network and confirmed, it cannot be reversed, cancelled, or modified by KMS Labs or any other party. You accept full responsibility for: (i) verifying all transaction details including recipient addresses, amounts, and network fees before confirming any transaction; (ii) ensuring the accuracy of all blockchain addresses before sending the Tokens; (iii) any losses resulting from transactions sent to incorrect, invalid, or unintended addresses.

c. Private Key Security. You acknowledge that holding and transacting in the Tokens requires robust cybersecurity practices. You agree to: (i) use reputable and regularly updated wallet software and security tools; (ii) maintain current antivirus and anti-malware protection; (iii) avoid accessing your Tokens wallet on compromised, public, or unsecured networks; (iv) regularly monitor your wallet for unauthorized transactions or suspicious activity.

d. Risks of Stabilization Mechanism. The stabilization mechanism for each of the Tokens is a peg to a token held in the Reserve matching the metal representation of the relevant Token. The management of reserves is set out in section 8. Reserves are exposed to counterparty risks.

e. Counterparty Risks

The involvement of intermediaries in custody and redemption processes introduces systemic risks to the Tokens, including potential:

– Delays in redemption via processing;

– Increased operational costs; and

– Amplified risk of a coordinated run on the Tokens.

f. Operational Risks. Tokens holders are exposed to operational risks associated with KMS Labs and its service providers, including fraud and cyber risks. These risks arise from the nature of complex cryptocurrency ecosystems, reliance on third-party service providers like exchanges and custody services, and potential limitations in remedying crypto asset losses or theft. KMS Labs employs multiple security strategies and due diligence processes to mitigate these risks.

g. Market Risks. The Tokens holders are exposed to various market risks associated with cryptocurrency and digital asset markets, including price volatility on third-party platforms. While the Tokens are designed to maintain a stable value to which the denominations of the Tokens make up, KMS Labs does not guarantee that the value of any the Tokens will always equal the reference underlying Kinesis Tokens on third-party platforms such as cryptocurrency exchanges. Due to market forces, trading activity, liquidity conditions, counterparty risk relating to the Reserve and other factors outside of KMS Labs’s control, the market price of the Tokens on third-party platforms may fluctuate above or below the price of the Kinesis Tokens. Although the Tokens should be redeemable for the relevant Kinesis Tokens in the Reserve, KMS Labs cannot control how third parties quote or value the Tokens.

h. Cryptocurrency Market Volatility. The broader cryptocurrency and digital asset markets are subject to extreme price volatility and unpredictability. Market conditions can change rapidly and may result in significant price movements, reduced liquidity, increased transaction costs, and market disruptions that could affect the trading and transfer of the Tokens on thirdparty platforms.

i. Liquidity Risk. There is no guarantee that liquid markets for the Tokens will always exist on third-party platforms. Market makers and liquidity providers may withdraw from the Tokens markets during periods of stress, potentially resulting in wider bid-ask spreads, reduced trading volumes, and difficulty in executing transactions at expected prices.

j. No Liability for Market Losses. KMS Labs is not responsible for any losses or other issues that may result from fluctuations in the market value of the Tokens on third-party platforms, cryptocurrency market volatility, or adverse market conditions affecting digital assets generally.

k. Regulatory Risks. Metal backed tokens are a rapidly evolving area and regulation in a variety of countries may impact on the ability of KMS Labs to maintain and continue to support the Tokens into the future.

I. Experimental Technology and Infrastructure Risks. the Tokens are built on blockchain technology and utilizes smart contracts, which are experimental and relatively new technologies that carry inherent risks:

i) Experimental Nature. Blockchain protocols and smart contract technology are still in development and may contain unknown vulnerabilities, bugs, or design flaws that could result in the total loss
of the Tokens or inability to access or transfer tokens.

ii) Smart Contract Risks. Smart contracts are autonomous programs that execute automatically based on coded instructions. These contracts may contain programming errors, security vulnerabilities, or may not perform as intended, potentially resulting in permanent loss of the Tokens or unintended consequences.

iii) Network Outages and Failures. Blockchain networks may experience significant outages, congestion, delays, or complete failures that could prevent you from accessing, transferring, or redeeming your Tokens for extended periods. Such disruptions may occur without warning and KMS Labs has no control over blockchain network operations.

iv) Protocol Changes and Updates. The underlying blockchain protocols may undergo changes, upgrades, forks (see section 6) or modifications that could affect the functionality, security, or accessibility of the Tokens. These changes may be implemented by third parties without notice or consent from KMS Labs or the Tokens holders.

v) Technological Obsolescence. The rapid evolution of blockchain technology may render current protocols obsolete or superseded by newer technologies, potentially affecting the long-term viability and utility of the Tokens.

vi) Cybersecurity Risks. The experimental nature of blockchain technology creates exposure to sophisticated cyber-attacks, hacking attempts, and security breaches that may not have been anticipated 20 or adequately addressed in current security protocols. You acknowledge and accept these technological risks and agree that KMS Labs has no liability for losses arising from the experimental nature of blockchain technology and smart contracts.

m. Exchange Custody and Failure Risks. If you hold the Tokens on a cryptocurrency exchange or other third-party platform, you face significant additional risks beyond those associated with self-custody:

i) Exchange Insolvency Risk. If an exchange becomes insolvent, bankrupt, or ceases operations, you may lose access to your Tokens permanently. Your Tokens held on the exchange may be frozen, seized by creditors, or become irrecoverable; 

ii) Custodial Risk. When you deposit the Tokens on an exchange, you typically transfer control of your tokens to the exchange. The exchange becomes the custodian of your Tokens, and you rely on the exchange’s security measures, operational procedures, and financial stability;

iii) Regulatory Action. Exchanges may be subject to regulatory enforcement actions, license revocations, or shutdown orders that could prevent you from accessing your Tokens;

iv) Operational Failures. Exchanges may experience technical failures, system outages, cybersecurity breaches, or other operational issues that could temporarily or permanently prevent access to your Tokens; 

v) Lack of Insurance. The Tokens held on exchanges are generally not covered by deposit insurance or other protective schemes, and you may have limited recourse in the event of exchange failure;

vi) Commingling Risk. Your Tokens may be commingled with other users’ assets on the exchange, making recovery difficult in insolvency proceedings. KMS Labs has no control over third-party exchanges and assumes no responsibility for exchange failures, operational issues, or losses arising from holding the Tokens on exchanges. You should carefully evaluate the risks of any exchange before depositing the Tokens and consider whether the convenience of exchange custody justifies these additional risks.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KMS LABS AND ITS AFFILIATES, SUBSIDIARIES, SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, AND REPRESENTATIVES (COLLECTIVELY, THE “KMS LABS PARTIES“) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF KMS LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM OR RELATING TO: (i) THE USE OR INABILITY TO USE THE TOKENS OR THE SERVICES; (ii) ANY BREACH OF THESE TERMS BY ANY PARTY; (iii) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) ANY CYBERSECURITY RISKS, SECURITY BREACHES, OR EXPERIMENTAL NATURE OF BLOCKCHAIN TECHNOLOGY AS DESCRIBED IN SECTION 15; (v) ANY MARKET LOSSES, PRICE VOLATILITY, OR ADVERSE MARKET CONDITIONS AS DESCRIBED IN SECTION 16; (vi) ANY FREEZING, SUSPENSION, OR TERMINATION ACTIONS AS DESCRIBED IN SECTIONS 11 AND 19; (vii) ANY FORCE MAJEURE EVENTS AS DESCRIBED IN SECTION 21; (viii) ANY RESERVE MANAGEMENT OR BACKING ISSUES AS DESCRIBED IN SECTION 8; OR (ix) ANY OTHER MATTER INVOLVING TOKENS OR THE SERVICES. IN NO EVENT SHALL THE TOTAL LIABILITY OF THE KMS LABS PARTIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT OF FEES PAID BY YOU TO KMS LABS IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. YOU HEREBY RELEASE AND FOREVER DISCHARGE THE KMS LABS PARTIES FROM ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE TOKENS OR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH THE TOKENS OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE TOKENS AND THE SERVICES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND SHALL SURVIVE TERMINATION OF THESE TERMS. THIS SECTION SUPPLEMENTS AND IS IN ADDITION TO THE SPECIFIC LIABILITY LIMITATIONS SET FORTH IN SECTIONS 6, 8, 11, 15, 19, AND 21 OF THESE TERMS.

a. General Indemnification. You agree to indemnify, defend, and hold harmless KMS Labs, its affiliates, subsidiaries, and service providers, and each of their respective officers, directors, agents, joint venturers, employees, and representatives (collectively, the “Indemnified Parties”) from and against any and all claims, demands, actions, suits, proceedings, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and any losses, fines, fees, or penalties imposed by any regulatory authority) arising out of or relating to:

i) your breach of any provision of these Terms;

ii) your violation of any applicable law, regulation, or legal requirement;

iii) your holding, use, transfer, or misuse of the Tokens;

iv) your negligent acts or omissions or willful misconduct;

v) any fraudulent, illegal, or unauthorized activity involving your Digital Tokens Address or the Tokens;

vi) any third-party claims arising from your use of the Tokens or the Services;

vii) your failure to comply with any applicable Sanctions Law, antimoney laundering laws, or counter-terrorist financing laws; or viii. any other act or omission by you in connection with these Terms, the Tokens, or the Services.

b. Defense Obligations. Upon notice from any Indemnified Party of any claim subject to indemnification hereunder, you shall assume the defense of such claim with counsel satisfactory to the Indemnified Party. The Indemnified Parties reserve the right to participate in the defense of any such claim with counsel of their own choosing at your expense.

c. Settlement Rights. You shall not settle any claim subject to indemnification hereunder without the prior written consent of the affected Indemnified Party, which consent shall not be unreasonably withheld.

d. Survival. The indemnification obligations set forth in this Section shall survive the termination of these Terms and shall remain in full force and effect regardless of the reason for such termination.

a. Ownership of Intellectual Property. All intellectual property rights in and to the Tokens, the Services, the Website, and all related technology, software, protocols, designs, trademarks, service marks, trade names, logos, copyrights, patents, trade secrets, and other proprietary materials (collectively, “KMS Labs IP“) are either used under licence or are and shall remain the exclusive property of KMS Labs and its licensors. No title to or ownership of any KMS Labs IP is transferred to you under these Terms. 

b. Limited License to Holders. Subject to your compliance with these Terms, KMS Labs grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the term of your holding of the Tokens to use the KMS Labs IP solely in connection with your authorized holding, transfer, and use of the Tokens. This license automatically terminates upon your cessation of holding the Tokens or any breach of these Terms.

c. Restrictions on Use. You may not, and may not permit any third party to: (i) copy, modify, create derivative works of, reverse engineer, decompile, or disassemble any KMS Labs IP; (ii) use any KMS Labs IP for any purpose other than as expressly permitted under these Terms; (iii) remove, alter, or obscure any proprietary notices on any KMS Labs IP; or (iv) use any KMS Labs trademarks, logos, or other identifying marks without KMS Labs’s prior written consent.

d. Reservation of Rights. All rights not expressly granted to you are reserved by KMS Labs. Nothing in these Terms grants you any right, title, or interest in any KMS Labs IP other than the limited license set forth herein.

a. Termination by KMS Labs. KMS Labs may terminate these Terms and your access to the Tokens and the Services at any time, at its sole discretion, by posting notice of such termination on the Website or otherwise communicating such termination to you. KMS Labs may terminate these Terms immediately without notice if: (i) you breach any provision of these Terms; (ii) you engage in any use prohibited under Section 10; (iii) you become a Sanctioned Person or Restricted Person; (iv) KMS Labs reasonably believes continued provision of Services would violate applicable law; or (v) KMS Labs deems termination necessary to protect its interests or comply with legal obligations. 

b. Suspension Rights. KMS Labs may, in its sole discretion, suspend your access to the Tokens and the Services, temporarily or indefinitely, without prior notice, if: (i) KMS Labs suspects you have violated these Terms; (ii) KMS Labs believes suspension is necessary to comply with applicable laws or legal process; (iii) there are security concerns affecting your account or the Tokens holdings; (iv) KMS Labs receives a request from governmental, regulatory, or law enforcement authorities; (v) technical issues require suspension for maintenance or security purposes; or (vi) KMS Labs deems suspension appropriate for any other reason in its sole discretion.

c. Effect of Termination. Upon termination of these Terms: (i) your right to access and use the Tokens and the Services shall immediately cease; (ii) any outstanding obligations shall survive termination; (iii) KMS Labs may exercise its freezing rights under Section 11 with respect to any the Tokens you hold; and (iv) you shall remain liable for any breaches that occurred prior to termination.

d. No Liability for Termination or Suspension. KMS Labs shall have no liability to you or any third party for any termination or suspension of access to the Tokens or the Services, regardless of the reason for such termination or suspension.

e. Survival. Upon termination of these Terms for any reason, all rights and obligations of the parties that by their nature are continuing shall survive such termination, including but not limited to warranty disclaimers, limitation of liability, indemnification obligations, dispute resolution provisions, and all rights and indemnities in favour of KMS Labs.

a. Mandatory Arbitration. Except for excluded claims described below in paragraph (b), each party agrees that any dispute, claim, or controversy arising out of or relating to (i) these Terms or the existence, breach, termination, enforcement, interpretation, or validity thereof, (ii) the Tokens or the operations and services provided hereunder, or (iii) your access to or use of the Tokens or any Services at any time, will be subject to and finally resolved by confidential, binding arbitration on an individual basis and not in a class, representative, or consolidated action or proceeding. The arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules in effect at the time of the dispute. The seat of arbitration shall be New York, New York, United States. The language of the arbitration shall be English. The arbitration shall be conducted before a single arbitrator.

b. Excluded Claims. The following claims and causes of action will be excluded from arbitration as described in paragraph (a): causes of action or claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of its intellectual property, including without limitation copyrights, trademarks, trade names, trade secrets, patents, or its confidential information or private data.

c. Arbitrator Selection and Powers. The sole arbitrator must be a legal practitioner with at least ten (10) years of experience in commercial disputes. If the parties cannot agree on the arbitrator within thirty (30) days, the arbitrator shall be appointed by the American Arbitration Association in accordance with its rules. The arbitrator may award any relief that a court of competent jurisdiction could award, including attorneys’ fees when authorized by law, and the arbitral decision may be enforced in court.

d. Class Action Waiver. You and KMS Labs expressly intend and agree that: (i) class action and representative action procedures are hereby waived and will not be asserted, nor will they apply, in any arbitration pursuant to these Terms; (ii) neither you nor KMS Labs will assert class action or representative action claims against the other in arbitration or otherwise; (iii) each of you and KMS Labs will only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person, or consolidate claims with any other person; (iv) nothing in these Terms will be interpreted as your or KMS Labs’s intent to arbitrate claims on a class or representative basis; and (v) any relief awarded to any one Eligible User cannot and may not affect any other Eligible User. No adjudicator may consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. 

e. Confidentiality. The parties will maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

f. Costs. The prevailing party, as determined by the arbitrator, will be entitled to its costs of the arbitration (including the arbitrator’s fees) and its reasonable attorney’s fees and costs.

g. Delegation. The arbitrator will have the power to hear and determine challenges to its jurisdiction, including any objections with respect to the formation, existence, scope, enforceability, or validity of the arbitration agreement.

a. No Advice

i) No Advice Provided. KMS Labs does not provide any investment, portfolio management, legal, accounting, tax, or other professional advice, or advice on trading techniques, models, algorithms, or any other schemes. All information provided in connection with the Tokens and the Services is for informational purposes only and should not be construed as professional advice of any kind.

ii) No Recommendation. Nothing contained in these Terms, on the Website, or in any communications from KMS Labs constitutes a recommendation, solicitation, or offer to buy, sell, or hold the Tokens or any other digital asset or financial instrument. Any decision to obtain, hold, use, or dispose of the Tokens is made solely by you based on your own independent evaluation.

iii) Independent Decision Making. You should not take, or refrain from taking, any action based solely on any information provided by KMS Labs. Before making any financial, legal, tax, or other decisions involving the Tokens or the Services, you should seek independent professional advice from qualified advisors who are licensed and qualified in the relevant areas. 

iv) No Fiduciary Relationship. These Terms are not intended to, and do not, create or impose any fiduciary duties on KMS Labs. The only duties and obligations that KMS Labs owes to you are those set out expressly in these Terms. 

v) Risk Assessment. You are solely responsible for evaluating the risks, merits, and suitability of the Tokens for your particular circumstances and financial situation. You acknowledge that holding and using the Tokens involves substantial risk and may not be suitable for all persons and you have read and understood all of the risks set out in section 15.

b. Governing Law

i) Governing Law. These Terms shall be governed by and construed in accordance with the Governing Law, without regard to its conflict of laws principles.

ii) Submission to Jurisdiction. Each party irrevocably submits to the dispute procedure outlined in clause 20 of these terms. 

iii) Service of Process. Each party irrevocably consents to the service of process of any of the aforementioned courts in any such proceedings by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at its address set forth herein, such service to become effective thirty (30) days after such mailing.

iv) Waiver of Jury Trial. Each party hereby irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to these Terms.

c. Tax

i) All holders of the Tokens are responsible for any taxation consequences which arise from their use of the Tokens. KMS Labs is solely responsible for any tax consequences arising from KMS Labs receiving returns on any of the Reserve.

ii) Transfers of the Tokens are not intended to be subject to value added tax or goods and services tax or any other form of sales tax.

d. Assignment and Transfer of Rights

i) No Assignment by Eligible Users. Eligible Users may not assign, transfer, delegate, or otherwise dispose of these Terms or any rights or obligations hereunder, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of KMS Labs, which consent may be withheld in KMS Labs’s sole discretion. Any attempted assignment, transfer, or delegation in violation of this provision shall be null and void.

ii) Assignment by KMS Labs. KMS Labs may freely assign, transfer, or delegate these Terms and any of its rights, duties, and obligations hereunder, in whole or in part, to any third party at any time without notice to or consent from any Eligible User. 

iii) Exclusion of Third-Party Rights. These Terms are entered into solely for the benefit of the parties hereto and their permitted successors and assigns. Nothing in these Terms, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. No person or entity other than the parties hereto and their permitted successors and assigns shall be deemed to be a third-party beneficiary of these Terms. 

iv) Statutory Exclusion. To the extent permitted by applicable law, the provisions of any legislation that would otherwise allow third parties to enforce any term of these Terms (including but not limited to the Contracts (Rights of Third Parties) Act 1999 of England and Wales or similar legislation in other jurisdictions) are hereby expressly excluded and shall not apply to these Terms.

e. No Waiver. Any failure by KMS Labs to exercise or enforce any right, power, or remedy under these Terms, or any delay by KMS Labs in doing so, does not constitute a waiver of such right, power, or remedy. The single or partial exercise of any right, power, or remedy by KMS Labs does not preclude KMS Labs from exercising any other rights, powers, or remedies. The remedies of KMS Labs are cumulative and not exclusive of any other remedy provided by these Terms, by law, or in equity. No waiver by KMS Labs of any breach of these Terms shall be deemed a waiver of any subsequent breach of the same or any other provision.

f. Severability. If any provision of these Terms is determined to be invalid, void, illegal, or unenforceable by any court of competent jurisdiction, such determination shall: apply only to the specific provision found invalid; not affect the validity or enforceability of the remaining provisions; and be modified by the court to the minimum extent necessary to make the provision valid while preserving the original intent of the parties. The remaining provisions of these Terms shall continue in full force and effect. 

g. Force Majeure. KMS Labs shall have no liability for any failure or delay in performing its obligations under these Terms resulting from any condition beyond KMS Labs’s reasonable control, including but not limited to: acts of God; natural disasters; earthquakes; fires; floods; storms; epidemics; pandemics; governmental actions; acts of terrorism; war; civil unrest; labor disputes; strikes; power failures; equipment failures; internet disturbances; cyberattacks; security breaches; blockchain network failures or congestion; regulatory changes; and sanctions; or any other events that cannot reasonably be foreseen or provided against. In the event of a force majeure event, KMS Labs is excused from all performance obligations under these Terms for the duration of such an event. KMS Labs shall use commercially reasonable efforts to resume performance as soon as reasonably practicable after the force majeure event has ceased. For the
avoidance of doubt, this force majeure provision applies solely to KMS Labs and does not excuse Eligible Users from their obligations under these Terms.

h. Amendment and Modification

i) Amendment Process. KMS Labs may amend, modify, or update these Terms at any time by posting the revised version on the Website with an updated revision date.

ii) Effectiveness of Changes. The changes will become effective and shall be deemed accepted by you upon the earlier of: (i) the first time you access or use the Tokens or the Services after the initial posting of the revised Terms; or (ii) seven (7) days after the posting date.

iii) Application of Amended Terms. The amended Terms shall apply on a going-forward basis with respect to all transactions and activities initiated after the effective date.

iv) User Remedy. If you do not agree with any such amendments, your sole and exclusive remedy is to cease using the Tokens and terminate your use of the Services. You agree that KMS Labs shall not be liable to you or any third party because of any losses suffered by any modification or amendment of these Terms.

v) Material Changes. If the revised Terms include a material change that adversely affects your rights or obligations, KMS Labs will use commercially reasonable efforts to provide notice via the Website or other appropriate channels, including social media channels, when the material change becomes effective.